Hidden Sex Scenes Draw Ho-Hum, Except From Lawyers

Wednesday

Jun 25, 2008 at 4:51 AM

Few plaintiffs joined a class action suit brought against the video game Grand Theft Auto: San Andreas, which contained sex scenes buried in its software.

Lawyers who sued the makers of the video game Grand Theft Auto: San Andreas profess to be shocked, simply shocked, that few people who bought the game were offended by sex scenes buried in its software.

Any buyer upset about hidden sex in the violent game could file a claim under a settlement the lawyers struck with the game’s makers, Rockstar Games and its corporate parent, Take-Two Interactive. Of the millions of people who bought the San Andreas version after its release in 2004, exactly 2,676 filed claims.

“Am I disappointed? Sure,” said Seth R. Lesser, lead lawyer for the plaintiffs. “We can’t guess as to why now, several years later, people care or don’t care. The merits of the case were clear.”

Far bigger than the payout to plaintiffs will be the fees sought by the lawyers who brought the class action. Mr. Lesser and his colleagues at 10 other law firms have asked for more than $1.3 million — compared with less than $30,000 that Take-Two Interactive’s lawyers say it will spend to resolve the claims for $5 to $35 each (and, sometimes, a sanitized copy of the game).

“It doesn’t typically go that way,” said Mary J. Davis, a law professor at the University of Kentucky who has studied this type of litigation. To have legal fees dwarf a settlement payout, she continued, “is sort of backwards.”

The company and the plaintiffs lawyers both point out that the company has also agreed to make an $860,000 charitable contribution.

But the legal fees have drawn an objection, from a game-player who just happens to be a lawyer as well. Seeking to scuttle the deal is Theodore H. Frank, who directs the Legal Center for the Public Interest at the American Enterprise Institute, where he writes about class actions, liability and other topics.

“There are two possibilities,” Mr. Frank said of the settlement. “Possibility one is they have a meritorious lawsuit and they’re selling out the class for attorneys’ fees. The other possibility is that, and frankly I think this is the more likely possibility, they brought a meritless lawsuit that had no business being brought to court at all.”

The case could still go to trial if the settlement is not approved by a federal judge. A hearing is scheduled before Judge Shirley Wohl Kram of Federal District Court in Manhattan on Wednesday. But judges do not lightly set aside settlement agreements, which after all are intended to avoid costly litigation, Ms. Davis said. In reviewing such agreements, judges are supposed to ensure that the terms are reasonable, she explained, but they are not to substitute their views for those of the parties to the suit.

In documents filed on Friday, Mr. Lesser and other lawyers who brought the case argued that Mr. Frank was barred from attacking the settlement. They wrote that because Mr. Frank had said he was not offended by the scenes, he could not have a stake in the lawsuit.

The plaintiffs’ lawyers said that Take-Two would make a charitable donation to the video game industry’s ratings board under the settlement and argued that there was no way to know beforehand that so few people would apply for compensation under the settlement.

Besides, the lawyers argue, if the lawsuit had no merit, should that not make the settlement that much more impressive?

The civil lawsuit was filed after the disclosure of the sex scenes, accessible only to knowledgeable players using third-party software, sparked fulminations in Congress and great excitement online. The suit charged the company with defrauding buyers by failing to disclose the sex scenes.

The Entertainment Software Rating Board reclassified the game in 2005 for “adults only,” a designation that means the game should be played only by people 18 and older. The game’s rating led some big retailers to stop carrying it. The game had initially been rated for “mature” audiences, meaning people 17 and older.

Take-Two Interactive also settled a complaint by the Federal Trade Commission and released a version without the hidden scenes that then carried the mature rating. In court documents, a company executive said that the sex scenes were unfinished and had been edited out of the game before it was completed; they could not be seen during ordinary play but could be accessed using third-party software or hardware.

“The game was sold as something that it wasn’t,” said Mr. Lesser, the plaintiffs’ lawyer, adding that people did not want to be surprised by sexual content in video games, regardless of whether that content is difficult to view. Not surprisingly, he dismissed Mr. Frank’s criticism and said the lawsuit was justified.

“The merits of the case were clear,” Mr. Lesser said. “Otherwise it would’ve been settled a long time ago.”

Jeffrey S. Jacobson, whose firm of Debevoise & Plimpton represents Rockstar Games and Take-Two Interactive, was careful in his comments about the case. After all, the deal allows the company to end litigation that might otherwise cost many millions of dollars.

“The defendants always contended that this was a lawsuit that lacked merit,” Mr. Jacobson said. “We certainly wish the case had never been brought and we certainly wish we could’ve litigated it on the merits and achieved a victory,” he continued, but resolving the case this way was much less expensive.

If the case goes to trial, some interesting questions may arise about how and whether game buyers were deceived. While adults who bought the game for children said they were upset over the sex scenes that they did not know about (and had not seen), interviews conducted by lawyers showed the adults also did not know basic characteristics of the game.

For example, Brenda Stanhouse, who bought the game for her son, 15 years old at the time, said in a deposition that she did not know that a player in the game could “stomp to death innocent pedestrians.”

She also did not know that the game included prostitutes, that players could kill policemen or that “a player in the game can kill innocent pedestrians and steal money from them.”

“I’m aware that there is killing in the game,” Ms. Stanhouse said in the deposition. “I wasn’t aware of the stealing.”

Ms. Stanhouse was asked whether she would knowingly buy for her son a game that allowed him to kill police officers.

“Well, I think he does have games with violence,” Ms. Stanhouse said, adding that she would “possibly” buy such a game — though not one that contained sex scenes like those in San Andreas.

The exchange raises a deeper and perhaps more troubling question about the harm caused by the hidden scenes. The plaintiffs in the lawsuit clearly were more concerned about exposing their children to images of sex, but academic studies suggest that images of violence — abundant in the games — should be of greater concern.

“For some reason sex is seen as more harmful to kids than violence,” said Craig A. Anderson, distinguished professor of psychology at Iowa State University, who since the mid-1980s has studied the effects of playing video games on children, adolescents and college students.

“The irony is that in terms of the research literature on harmful effects of various forms of media, television, movies, video games, the research is very, very clear,” Professor Anderson said. “There are significant short-term and long-term effects of violent content.”